Citation Nr: 1523479
Decision Date: 06/03/15 Archive Date: 06/16/15
DOCKET NO. 13-33 740 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine
THE ISSUES
1. Entitlement to an effective date earlier than February 18, 2010 for the grant of service connection for degenerative joint disease, right shoulder (major) due to exposure to test agents used during Project Shipboard Hazard and Defense (SHAD).
2. Entitlement to an effective date earlier than February 18, 2010 for the grant of service connection for strain, right forearm with degenerative joint disease, right elbow (major) due to exposure to test agents used during Project SHAD.
3. Entitlement to an effective date earlier than February 18, 2010 for the grant of service connection for restrictive lung disease (claimed as shortness of breath) due to exposure to test agents used during Project SHAD.
4. Entitlement to an effective date earlier than February 18, 2010 for the grant of service connection for right bundle branch block (claimed as heart palpitations) due to exposure to test agents used during Project SHAD.
5. Entitlement to an effective date earlier than February 18, 2010 for the grant of service connection for intermittent muscle twitches due to exposure to test agents used during Project SHAD.
6. Entitlement to an effective date earlier than February 18, 2010 for the grant of service connection for contact dermatitis of the face, legs, arms, and back due to exposure to test agents used during Project SHAD.
7. Entitlement to an effective date earlier than April 12, 2013 for the grant of compensation for consequences of flexor hallucis longus tendon harvesting to include decreased range of motion and loss of strength of left ankle and peripheral neuropathy of the left foot (claimed as left foot, leg, and ankle condition due to Achilles tendon repair) under 38 U.S.C.A. § 1151.
REPRESENTATION
Appellant represented by: Maine Veterans' Services
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
April Maddox, Counsel
INTRODUCTION
The Veteran had active service from September 1964 to May 1968.
This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine.
The Veteran testified before the undersigned Veterans Law Judge at a Board Videoconference hearing in June 2014. Notably, the Veteran was unrepresented at the time of the June 2014 hearing. However, the Veteran testified that he was willing to proceed with the hearing in the absence of his representative. A transcript of this proceeding has been associated with the claims file.
The Board notes that, in addition to the paper claims file, there are two separate paperless claims files associated with the Veteran's claims, a Virtual VA file and a Veterans Benefits Management System (VBMS) file. A review of the documents in Virtual VA reveals the June 2014 Board hearing transcript. A review of the documents in VBMS reveals an October 2014 notice of disagreement pertaining to an August 2014 rating decision as well as the August 2014 rating decision. The remaining documents in both Virtual VA and VBMS are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.
During the June 2014 Board hearing, it was noted that the Veteran was presently service connected for adjustment disorder with mixed anxiety and depressed mood but also sought service connection for posttraumatic stress disorder (PTSD). Notably, by rating decision dated in April 2014, the RO continued a previous denial of service connection for PTSD. The newly raised issue pertaining to reopening the Veteran's previously denied claim of PTSD has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014).
The issue of entitlement to an effective date earlier than April 12, 2013 for the grant of compensation for consequences of flexor hallucis longus tendon harvesting to include decreased range of motion and loss of strength of left ankle and peripheral neuropathy of the left foot (claimed as left foot, leg, and ankle condition due to Achilles tendon repair) under 38 U.S.C.A. § 1151 is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.
FINDINGS OF FACT
1. On November 25, 2002, the Veteran submitted a claim for service connection for disabilities sustained due to biological warfare in Project SHAD, including skin rashes, muscles twitches, the right forearm, the right elbow, the right shoulder, heart palpitations, and shortness of breath.
2. In a September 2003 rating decision, the RO denied entitlement to service connection for claimed periodic skin rash, muscle twitching, right shoulder pain, right elbow pain, right forearm pain, heart palpitations, and shortness of breath. The denial was based on a May 2003 VA examiner's opinion that the Veteran's claimed disabilities were not related to the Veteran's participation in the "half-note experiment" of SHAD.
3. In an October 2003 memorandum, it was noted that since the May 2003 VA examination, it had come to light that the Veteran was involved in another SHAD operation, "Folded Arrow." As such, it was requested that an addendum opinion be obtained from the May 2003 VA examiner.
4. Subsequently, in October 2003, an addendum opinion was obtained from the May 2003 VA examiner.
5. Following the October 2003 addendum opinion, the RO did not readjudicate the claim, and the claim was never denied by a later appellate adjudication.
6. In an August 2010 rating decision, the RO granted the Veteran's claim of entitlement to service connection for contact dermatitis of the face, legs, arms and back (claimed as skin rash); strain, right forearm and degenerative joint disease, right elbow (major); degenerative joint disease, right shoulder (major); intermittent muscle twitches (claimed as muscle condition); right bundle branch block (claimed as heart palpitations); and restrictive lung disease (claimed as shortness of breath and lung condition due to asbestos) and assigned an effective date of February 18, 2010 for each award.
7. The November 25, 2002 claim remained pending until the claim for service connection for the Veteran's SHAD disabilities was granted in the August 2010 rating decision.
CONCLUSIONS OF LAW
1. The criteria for an earlier effective date of November 25, 2002, for the grant of service connection for degenerative joint disease, right shoulder (major) due to exposure to test agents used during Project SHAD have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2014).
2. The criteria for an earlier effective date of November 25, 2002, for the grant of service connection for strain, right forearm with degenerative joint disease, right elbow (major) due to exposure to test agents used during Project SHAD have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2014).
3. The criteria for an earlier effective date of November 25, 2002, for the grant of service connection for restrictive lung disease (claimed as shortness of breath) due to exposure to test agents used during Project SHAD have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2014).
4. The criteria for an earlier effective date of November 25, 2002, for the grant of service connection for right bundle branch block (claimed as heart palpitations) due to exposure to test agents used during Project SHAD have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2014).
5. The criteria for an earlier effective date of November 25, 2002, for the grant of service connection for intermittent muscle twitches due to exposure to test agents used during Project SHAD have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2014).
6. The criteria for an earlier effective date of November 25, 2002, for the grant of service connection for contact dermatitis of the face, legs, arms, and back due to exposure to test agents used during Project SHAD have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014).
This appeal arises from the Veteran's disagreement with the effective date assigned following the grant of service connection for diabetes mellitus. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required.
VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). Here, it appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file and the Veteran has not contended otherwise.
As above, the Veteran was provided an opportunity to set forth his contentions during a hearing in June 2014. In Bryant v. Shinseki, 23 Vet App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned specifically noted the issues on appeal and clarified the Veteran's contentions. As such, the Board finds that the undersigned complied with the aforementioned hearing duties.
The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993).
II. Analysis
The Veteran contends that he is entitled to an effective date earlier than February 18, 2010, for the grant of service connection for contact dermatitis of the face, legs, arms and back (claimed as skin rash); strain, right forearm and degenerative joint disease, right elbow (major); degenerative joint disease, right shoulder (major); intermittent muscle twitches (claimed as muscle condition); right bundle branch block (claimed as heart palpitations); and restrictive lung disease (claimed as shortness of breath and lung condition due to asbestos).
Generally, the effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a)(West 2014); 38 C.F.R. §§ 3.400, 3.401 (2014).
The effective date for a grant of benefits on the basis of the receipt of new and material evidence received after final disallowance, or in the case of reopened claims, is the date of receipt of the new claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii), (r).
Applicable regulations provide that if new and material evidence was received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011).
The pending claims doctrine provides that a claim remains pending in the adjudication process, even for years, if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007).
On November 25, 2002, the Veteran submitted a claim for service connection for disabilities sustained due to biological warfare in Project SHAD, including skin rashes, muscles twitches, the right forearm, the right elbow, the right shoulder, heart palpitations, and shortness of breath.
In a September 2003 rating decision, the RO denied entitlement to service connection for claimed periodic skin rash, muscle twitching, right shoulder pain, right elbow pain, right forearm pain, heart palpitations, and shortness of breath. The denial was based on a May 2003 VA examiner's opinion that the Veteran's claimed disabilities were not related to the Veteran's participation in the "half-note experiment" of SHAD. In an October 2003 memorandum, it was noted that since the May 2003 VA examination, it had come to light that the Veteran was involved in another SHAD operation, "Folded Arrow." Specifically, it was noted that "Folded Arrow" took place while the Veteran was stationed on the USS Granville S Hall during the months of April and May 1968. As in the previous project, he was exposed to Bacillus globigii. Project "Folded Arrow" also exposed the Veteran to Calcium hypochlorite as well as betapropriolactone. As such, it was requested that an addendum opinion be obtained from the May 2003 VA examiner. Subsequently, in October 2003, an addendum opinion was obtained from the May 2003 VA examiner.
Following the October 2003 addendum opinion, the RO did not readjudicate the claim, and the claim was never denied by a later appellate adjudication. Pursuant to 38 C.F.R. § 3.156(b), the RO had a duty to readjudicate the Veteran's claim after obtaining the October 2003 addendum opinion. While the Veteran never initiated an appeal as to the September 2003 rating decision, the RO's failure to readjudicate the claim after the October 2003 addendum opinion prevented the September 2003 rating decision from becoming final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2014). Thus, the November 25, 2002 claim for service connection for disabilities related to the Veteran's exposure to test agents used during Project SHAD has remained pending since November 25, 2002.
With a date of claim of November 25, 2002, established, the Board will next turn to the question of whether the Veteran is entitled to an earlier effective date than Febraury 18, 2010, for the award of service connection for a disabilities related to the Veteran's exposure to test agents used during Project SHAD
Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application thereof. 38 U.S.C.A. § 5110(a). The statutory provision is implemented by regulation which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of a successful claim to reopen is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. Id; Spencer v. Brown, 4 Vet. App. 283, 293 (1993), aff'd 17 F.3d 368 (Fed. Cir. 1994).
4 Vet. App. 283, 293 (1993), aff'd 17 F.3d 368 (Fed. Cir. 1994).
Since the November 25, 2002, claim remained pending, the Board finds that the Veteran is entitled to an earlier effective date of November 25, 2002, the date of his original claim for service connection.
As for the possibility of an even earlier effective date, the Veteran is contending that he was effectively estopped from filing a claim for disabilities stemming from his participation in Project SHAD due to the classified nature of his service. After reviewing the file, and especially after hearing the Veteran's testimony at his personal hearing, the Board comes away with a firm conviction that he was treated shabbily by his government in being subjected to biological warfare experimentation. The Board has the deepest sympathy for the Veteran's situation.
The Veteran's arguments are couched in equity. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). However, under 38 U.S.C. § 503 the Secretary has the ability to grant equitable relief in certain situations and this case may be ripe for secretarial review. See 38 U.S.C. § 503 (West 2002).
In sum, the Veteran is entitled to an earlier effective date of November 25, 2002, but no earlier, for the grant of service connection for contact dermatitis of the face, legs, arms and back (claimed as skin rash); strain, right forearm and degenerative joint disease, right elbow (major); degenerative joint disease, right shoulder (major); intermittent muscle twitches (claimed as muscle condition); right bundle branch block (claimed as heart palpitations); and restrictive lung disease (claimed as shortness of breath and lung condition due to asbestos). 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). The benefit-of-the-doubt rule has been considered in making this decision. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Subject to the laws and regulations governing payment of monetary benefits, an earlier effective date of November 25, 2002, for the grant of service connection for degenerative joint disease, right shoulder (major), is granted.
Subject to the laws and regulations governing payment of monetary benefits, an earlier effective date of November 25, 2002, for the grant of service connection for strain, right forearm and degenerative joint disease, right elbow (major), is granted.
Subject to the laws and regulations governing payment of monetary benefits, an earlier effective date of November 25, 2002, for the grant of service connection for restrictive lung disease (claimed as shortness of breath and lung condition due to asbestos), is granted.
Subject to the laws and regulations governing payment of monetary benefits, an earlier effective date of November 25, 2002, for the grant of service connection for right bundle branch block (claimed as heart palpitations), is granted.
Subject to the laws and regulations governing payment of monetary benefits, an earlier effective date of November 25, 2002, for the grant of service connection for intermittent muscle twitches (claimed as muscle condition), is granted.
Subject to the laws and regulations governing payment of monetary benefits, an earlier effective date of November 25, 2002, for the grant of service connection for contact dermatitis of the face, legs, arms and back (claimed as skin rash), is granted.
REMAND
As above, a review of the documents in VBMS reveals an October 2014 statement in which the Veteran requested an earlier effective date for the award of compensation for his left foot disability. Notably, by rating decision dated in August 2014, the RO granted compensation for consequences of flexor hallucis longus tendon harvesting to include decreased range of motion and loss of strength of left ankle and peripheral neuropathy of the left foot (claimed as left foot, leg, and ankle condition due to Achilles tendon repair) under 38 U.S.C.A. § 1151 effective April 12, 2013. The Board finds that the Veteran's October 2014 represents a timely notice of disagreement with respect to the effective date assigned for the Veteran's 38 U.S.C.A. § 1151 claim. 38 C.F.R. § 20.201. As such, upon remand, the AOJ should issue a statement of the case addressing this issue. Manlincon v. West, 12 Vet. App. 238 (1999). This issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997).
Accordingly, the case is REMANDED for the following action:
Provide the Veteran and his representative with a statement of the case on the issue of entitlement to an effective date earlier than April 12, 2013 for the grant of compensation for consequences of flexor hallucis longus tendon harvesting to include decreased range of motion and loss of strength of left ankle and peripheral neuropathy of the left foot (claimed as left foot, leg, and ankle condition due to Achilles tendon repair) under 38 U.S.C.A. § 1151. Please advise the Veteran and his representative of the time period in which to perfect an appeal of this issue. If an appeal of this issue is perfected in a timely fashion, then return this issue to the Board for its review, as appropriate.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs